Maryland Court Rules Marijuana Odor Not Enough To Search A Person

A Court of Appeals ruled that "the odor of marijuana coupled with possession of what is clearly less than ten grams ... does not grant officers probable cause" to search and arrest a person.

Gerald Herbert
/ AP

It turns out that in Maryland, reeking of marijuana is not sufficient probable cause for police to arrest and search a person.

In a unanimous ruling earlier this week, the state's Court of Appeals determined two police officers violated a man's Fourth Amendment rights by conducting an unreasonable warrantless search of his person, after police found him in a car that smelled like pot.

"In the post-decriminalization era, the mere odor of marijuana coupled with possession of what is clearly less than ten grams of marijuana, absent other circumstances, does not grant officers probable cause to effectuate an arrest and conduct a search," court documents state.

In 2014, Maryland decriminalized possession of up to 10 grams of marijuana, and possession of less than that amount is now considered a civil offense that carries a $100 fine.

The decision stems from a case involving officers from the Montgomery County Police Department — identified only as Groger and Heffley in court papers — who came across Michael Pacheco, sitting in a Chevrolet Trailblazer in an otherwise empty parking lot one night.

As they got closer to the car, the officers say they detected the smell of "fresh burnt" marijuana. They also noticed a joint sitting in the center console; that's when they asked Pacheco to step out of the car and they searched him. They found cocaine in his left front pocket. Then they moved on to the car, where they found a marijuana stem and two packets of rolling papers.

Pacheco was ultimately arrested and cited with a ticket for possession of less than 10 grams of marijuana and charged with possession of cocaine with intent to distribute.

According to the court's decision, had the officers merely asked him to step out of the car and searched the vehicle, they would have been perfectly within the limits of the law. But searching Pacheco himself, based on the discovery of such a small amount of pot in the car, was going too far, making the discovery of the narcotic unusable in court.